Woodland Hills Personal Injury Lawyer Barry P. Goldberg encourages everyone to enjoy the outdoors and experience all that California, Los Angeles County and Ventura County have to offer. However, if you are entering property to hike, sight see or bike, you may not be able to sue anyone if you are injured. This surprises many clients when there is an unsafe condition on property to owner knew or should have known about. The property owner may be safe from a lawsuit based on the recreational use immunity provided by Civil Code section 846. Section 846 is referred to as the “recreational use immunity statute.” (Jackson v. Pac. Gas & Elec. Co. (2001) 94 Cal.App.4th 1110, 1114.)
Section 846 states that a property owner does not owe a duty of care “to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions” on the property to individuals entering the property for a recreational purpose. The statute defines “recreational purpose” by listing examples of numerous recreational activities such as “hiking, . . . sightseeing, . . . nature study, nature contacting, . . . and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.” (§ 846, emphasis added.)
The recreational use immunity statute expresses the strong legislative policy that private land should be open for recreational use. (Hubbard v. Brown (1990) 50 Cal.3d 189, 192.) “Section 846 was enacted to encourage property owners to allow the general public to engage in recreational activities free of charge on privately owned property. [Citations.] The statutory goal was to constrain the growing tendency of private landowners to bar public access to their land for recreational uses out of fear of incurring tort liability.” (Id. at p. 193.) “Section 846 accomplishes this purpose by immunizing persons with interests in property from tort liability to recreational users, thus making recreational users responsible for their own safety and eliminating the financial risk that had kept land closed.” (Id. at p. 192; see Collins v. Tippett (1984) 156 Cal.App.3d 1017, 1020 [providing immunity to beachfront landowner against a lawsuit by a beach sunbather who was injured by gunite falling from a cliff advances the “goal of keeping as much private land as possible open for public recreational use”].)
“The public policy balance achieved by the statute is clear: landowners are broadly encouraged to allow access to their property; recreationists who take advantage of this access waive their right to sue for ordinary negligence. The determination as to whether the land is ‘suitable’ for recreation is placed on the user, not the courts.” (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1106.)
The statute provides three exceptions to the recreational user immunity: (1) for a landowner’s “willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity”; (2) for injury suffered where permission to enter for a recreational purpose was granted in exchange for payment or consideration; and (3) for individuals expressly invited by the landowner to come on to the property, as opposed to those merely permitted on the property. (§ 846.)
Many litigants attempt to skirt the recreational use immunity by contending that the property owner willfully failed to warn or guard by failing to fence the area or post warning signs. However, “willful failure” requires something more. Although these types of facts may show a passive indifference or an absence of care, the courts do not conclude these facts rise to the level of willful misconduct necessary to fall within the exception to section 846’s recreational use immunity. Willful misconduct cannot be presumed. (O’Shea v. Claude C. Wood Co. (1979) 97 Cal.App.3d 903, 913 (O’Shea) superseded by statute on unrelated grounds as stated in Jackson v. Pac. Gas & Elec. Co. (2001) 94 Cal.App.4th 1110, 1117.)
If you or a family member are injured while enjoying California’s great outdoors, it is important to consult with an experienced lawyer familiar with the recreational use immunity and all of the possible exceptions.
